Wednesday, August 30, 2017
by Professor Ian Haney Lopez
Like Donald Trump, Joe Arpaio made his name in politics through aggressive race baiting, repeatedly winning election as the sheriff of Maricopa County, home to Phoenix, by that means. Arpaio’s political strategy involved systematically going after the city’s Latino residents, using Latino appearance as the predominant reason for stopping and detaining people until they could prove their right to be in the United States.
Arpaio claimed his goal was to enforce immigration laws. But the pervasive targeting of folks based on their “Mexican” appearance made it clear that his deeper goal was to publicly stigmatize Latinos, citizens or otherwise, as perpetual foreigners in Arizona. In effect, he used racial harassment to grandstand politically.
In 2011, a federal court issued a stinging rebuke of Arpaio, making clear that the Constitution prohibits going after Latinos based on a presumption that we are in the country illegally. This sort of racial profiling, the court warned, was unconstitutional and had to stop.
Arpaio refused, and indeed made a point of flaunting his disdain. He ordered his officers to continue detaining and harassing people principally on the basis of Latino appearance.
Finally, this July, the federal court responded again and held Arpaio in criminal contempt for his refusal to obey the law. Compared with the damage he had done to thousands of people over his 25 years in office, Arpaio faced a slap on the wrist—a mere six months in jail, at most. Nevertheless, his conviction sent a powerful message about the law’s duty and power to protect people from abusive government officials.
Then Trump pardoned Arpaio, siding with someone guilty of violating the 14th Amendment’s bedrock command of racial equality and of mocking a federal court’s order that he desist.
There’s some discussion, for instance in a recent op-ed in The New York Times, of the possibility that Trump’s pardon could be rejected by the courts. The logic is that in using his pardon to dismiss a conviction for violating a court order, Trump has effectively gutted the capacity of the courts to serve as a “check and balance” against executive power. He has done that. But it’s doubtful the courts will limit the president’s ability to grant pardons on that basis. After all, the pardon power by its very nature hamstrings court power.
There are a number of points in constitutional law in which the judicial branch confronts an inevitable truth: Democracy does not depend on courts or laws themselves, but on respect for the rule of law. When that respect is lacking among other branches of government, the courts can do little on their own to save democracy.
At these points, the courts often defer—to the abuser, in the short run, but ultimately to us, the people. At the end of the day, it is the public that must decide what is acceptable—and what trammels democracy. The president is answerable, a court might say, “in his political capacity.”
One way the president can be made answerable is through electoral process. Another is through impeachment by the people’s representatives in the House.
In pardoning an official who spat upon the 14th Amendment right to racial equality and who treated the federal courts contemptuously, Trump abused his presidential powers. He enabled a racist to trash our country’s core values and subvert the rule of law and face no consequences for these actions.
With courts powerless to stop this double assault on democracy, Trump must be held to account politically. This is precisely the situation for which impeachment was designed. The Constitution speaks of impeachment for “high crimes and misdemeanors.” This term refers not to some narrow set of enumerated crimes but broadly to abuses of public power that threaten the democratic order.
Other grounds for impeaching Trump have been advanced and, given his temperament as well as on-going investigations, others will surely emerge. Likewise, with respect to his aligning himself with racists, the bill of particulars against Trump is long and growing, from his birther lies to his coddling of the Charlottesville white supremacists. Finally, this is unlikely to be Trump’s last abuse of pardon power. Pardons for family members, and even for himself, may come all too soon.
As a technical matter, these swirling and deepening transgressions are independent of Trump’s pardon of Arpaio, which could stand on its own as a basis for impeachment. But the case for impeachment should not be read narrowly. It is, at root, a political judgment. At its most mystical—in the aspirational sense of the word—impeachment is the people’s power. This power should be exercised based on concrete abuses, to be sure, but should also look broadly at the president’s behavior, past and probable.
Of course, impeachment is most often mystical in a much less flattering sense, as an ideal rarely honored but instead typically mired in petty party politics. It’s overwhelmingly likely the current Republican House majority will refuse to impeach Trump. In this circumstance, the people must elect a majority that will impeach—one that honors racial equality, protects the rule of law, and thereby saves democracy.
-- Ian Haney Lopez is the Earl Warren Professor of Public Law at the University of California-Berekeley School of Law
This article was originally published in The Nation here
Wednesday, August 23, 2017
It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.
Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, "Who's culture is being protected by protecting these monuments?") The consequences of the Civil War, for good and ill, linger. Moreover, history's memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.
History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way--when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.
The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn't confuse the two.
Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)
One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today's egalitarian heroes may end up tomorrow's villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over "who tells our story." That's just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.
It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.
As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I'm not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn't protect you from the consequences of disagreement.)
But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals' statues erases history. That argument will likely cost you a lot of your audience. And they won't forget.
Wednesday, August 16, 2017
I had kind of a surreal moment in Forsyth Park the other day--one that is still on my mind. Forsyth Park is in historic Savannah, Georgia, just a few blocks from where I live--and right across the street from Savannah Law School, where I work. I was walking by the large monument with the statue that is right in the middle of the park. There was a Black family taking pictures in front of the monument, and just as I walked pass them, one of them said to the others, "I wonder what this is."
I normally don't interfere in other people's family conversations, but I know full well what that monument is, and I had to tell them. So I got their attention and said bluntly, "It is a Confederate monument." I pointed to the inscription on the bust of Francis S. Bartow (which they were photographing), right where it says "Georgia Volunteers Confederate States Army." I thought of engaging them in further conversation, but they looked a bit stunned and embarrassed, and I did not want to exacerbate those feelings. They thanked me, and I walked away, feeling like I don't know what. I have many different thoughts about this stuff, and it has taken me a few days to process them.
Savannah has more than its fair share of Confederate landmarks, but what is interesting is how subtle there are. The statue in the middle of the monument in Forsyth Park is not a statue of Jefferson Davis or Robert E. Lee, but rather Major General Lafayette M. Laws. Neither he nor Bartow is someone that most people have heard of. I see tourists taking pictures of it all the time, and at first I presumed that they were celebrating the Confederacy. Over time, however, I have become convinced that they just see this nice statue (which it is) in the middle of the park and, like any other nice work of art, they take pictures in front of it.
Personally, I knew exactly what the monument was even before I moved to Savannah. I have walked by it hundreds of times, and literally every time, the thought has come in my head that it should be removed. But I also realize that like the tourists, I have walked by similar landmarks and even taken pictures of them without thinking much about it. Although one can usually find out by reading the inscriptions, most people don't do that. It seems that Savannah strives to keep these Confederate landmarks, but not to make them too conspicuous--lest they offend some of the many tourists who are always in the city. In my three plus years living in downtown and historic Savannah, rarely have I seen a Confederate flag--a much more obvious symbol of the Confederacy. There have been a few occasions, but far less than one might expect in a city where many are still resentful of General Sherman.
There are plenty of other Confederate relics here that people might not be aware of. Right on Gwinnett and Drayton Streets, two blocks from Savannah Law School, there is a bed-n-breakfast called the Confederate House. It has rooms named after Jefferson Davis, Robert E. Lee, and Stonewall Jackson. According to its website, it was actually voted "the most romantic inn in Savannah" in 2013 by CityofSavannah.com. But unless you looked at the website or really paid attention, you would not know about it.
It may also be this type of subtlety that allows Savannah to thus far avoid the protests against racism that we are seeing in many other Southern cities. The prominent influence of SCAD--the Savannah College of Art and Design--is one of many factors that intersect with Savannah's history and make the city a unique and interesting confluence of cultures. But that same confluence also helps to mask Savannah's racist history.
I am glad to see that, in light of recent national events, people in the city are at least beginning to have a dialogue about these things. Although the city of Savannah insists that only the state can rename bridges or order monuments to be removed, we need to start somewhere. On Tuesday, September 5, there will be a free public forum to discuss renaming the Eugene Talmadge Bridge--which many say is the most prominent landmark in Savannah to be named after a reprehensible figure. Talmadge was born after the Civil War, but he was a White supremacist and staunch segregationist Governor of Georgia in the late 1930s and early 1940s -- but yet another person that most visitors probably have not heard of. Even if it does not lead directly to the renaming of the bridge or removal of Confederate monuments, this type of conversation can prompt people to recognize what is being displayed around them.
Nevertheless, there is another important point that I have to make--one that was on my mind even before these recent events. In spite of everything I said above, I do cringe when the first thing I hear out of Northerners' mouths is a diatribe about how racist the South is. One implication of such comments is that the North is somehow devoid of racism or at least less racist--a dubious proposition. Just because something is less visible does not mean it is less salient--as I pointed out above.
But even more importantly, when you view the South exclusively in terms of White supremacy, you are ignoring and erasing the struggle of Black people in the South--and thus using a White racist lens yourself. More Black people live here than anywhere else, and they are not an inconsequential part of the South's legacy. Remember that the struggle for racial equality began in the South and has deeper roots here than anywhere else in America. It was Black Southern civil rights leaders--national figures like Rev. Martin Luther King, and local leaders like Savannah's Rev. Ralph Mark Gilbert--who also define the South's history. Their legacy is as much a part of the South as is Jim Crow or the Confederacy. And as far as I am concerned, to forget the struggle of the Black South, or even to relegate it to the background, is to disrespect those who fought and died here for equal rights. I realized this fully when I visited the Ralph Mark Gilbert Civil Rights Museum in Savannah earlier this summer. Everyone who visits Savannah should go to this museum, which documents an equally important part of the Savannah's history--and the South's history. And when the Confederate monument in Forsyth Park finally does come down, we should put up a statue of Ralph Mark Gilbert in its place.
I am glad that cities across the South are beginning to acknowledge its racist history and the legacy of White supremacy that is still with us. My experience at Forsyth Park the other day shows just how important this acknowledgment is. But let us not forget the struggle of the Black South against such White supremacy--a struggle which continues to this day, and which is the very impetus that is leading us to have these conversations and take these actions right now.
Wednesday, August 2, 2017
The New York Times reported yesterday that the Trump Administration is planning to attack affirmative action. The Times noted that it received an internal announcement from the U.S. Department of Justice, Civil Rights Division, which sought attorneys to explore “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
As with many other issues, Trump has flip-flopped on affirmative action, taking whichever position is politically expedient. During his Republican primary campaign, he stated on “Meet the Press” that he was “fine with affirmative action.” And after the oral argument in Fisher v. University of Texas at Austin II (2015), Trump criticized remarks by the late Justice Antonin Scalia which questioned the utility of race-conscious admissions policies.
Of course, few people took these statements seriously. It is not surprising that, in the wake of Republicans’ failure to repeal the Affordable Care Act and the Trump Administration’s many other problems, Trump wants to distract us from the GOP’s many shortcomings. Last week, he tweeted out a proposal to ban transgender individuals from serving in the military. This week, his administration leaks its plan to challenge race-conscious university admissions policies. Trump is thus pursuing a long-standing Republican strategy of appeals to bigotry and racial animus.
This development raises red flags for universities even higher. Affirmative action has long been a charged and divisive issue. In June 2016, the U.S. Supreme Court upheld the use of race in college admissions by a 4-3 vote in Fisher II. Justice Anthony Kennedy surprised many observers, including me, by voting in favor of University of Texas at Austin (UT) race-conscious admissions plan. Kennedy had never before voted to uphold such a policy, but he continued a general trend of swing Justices casting surprising votes in such cases. In Regents of the University of California vs. Bakke (1978), Justice Lewis Powell voted to strike down UC Davis Medical School’s set-aside plan for minority students, but he did note in his concurrence that universities could use race as a “plus factor” in admissions. Twenty-five years later, in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor endorsed the University of Michigan Law School’s flexible, holistic policy, writing the majority opinion in a 5-4 ruling. Like Kennedy, Justice O’Connor had never before voted to uphold a race-conscious policy. Fisher II had given conservatives hope to overturn or seriously curb back Grutter, and they were very disappointed with the ruling.
Nevertheless, although Fisher II left in place Grutter’s core framework for race-conscious university admissions, by no means did Justice Kennedy give universities a free pass. To the contrary, his opinion made clear that UT has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” Kennedy acknowledged that in the past, UT “had no reason to keep extensive data”—but he made clear that this was no longer the case.
Here is where the Trump administration could have its major impact. The burden is on universities to show that they really need to use race and that “race-neutral” admissions criteria, such as socioeconomic status, will not produce sufficient diversity. UT met this burden, as data show that Texas’s Top Ten Percent Law is insufficient in this regard. But in the future, the Trump Administration could challenge UT and other universities on the necessity of using race. It could find that universities are not sufficiently justifying their need, prompting more lawsuits. Moreover, simply compelling universities to release information could spur such lawsuits, as opponents of affirmative action can always spin such data to argue that a university’s race-conscious policy is unconstitutional.
While I do not think that universities will abandon their race-conscious admissions policies directly in response to the Trump Administration’s proposed attack, they will feel more pressure and have to think more carefully about how to defend these policies. During the Obama Administration, the Civil Rights Division issued guidance to help universities make sure their race-conscious admissions policies were constitutional. Trump's Justice Department could effectively do the opposite: tell universities that their policies are unconstitutional and should be eliminated. More than ever before, universities need to be firm, diligent, and proactive in defending their admissions policies and ensuring that their student bodies are racially diverse.
For over fifteen years, a critical mass of Americans have been calling for profiling Muslims and Arabs in immigration, anti-terrorism enforcement, and surveillance. A 2009 study by Professor Deborah J. Schildkraut at Tufts University provides some insights into who is more likely to support ethnic profiling of Arabs and Arab Americans post-9/11. Her study makes the following conclusion:
"This study examines support for ethnic profiling in the United States as a counterterrorism tactic. It first compares support for counterterrorism profiling with support for profiling Black motorists. Then, it investigates whether the status of the profilee as a U.S. citizen of Arab or Middle Eastern appearance or as an immigrant alters either support for profiling or the determinants of that support. In both sets of analyses, the study investigates how competing ideas about the meaning of American identity shape opinions about profiling. Particular attention is paid to liberalism’s emphasis on the rights of citizenship and ethnoculturalism’s emphasis on the ascriptive boundaries of American identity.
The results show that support for counterterrorism profiling is higher than support for profiling Black motorists, that people are more supportive of profiling immigrants than they are of profiling U.S. citizens, and that how people define what it means to be American is a powerful predictor of such support. The perspective promoted by the increasing number of radical activists on issues related to immigration—that being American means being a White European Christian—is the most powerful predictor of support for profiling. A liberal understanding of being American can offset some, but not all, of that support."
Her article The Dynamics of Public Opinion on Ethnic Profiling After 9/11: Results From a Survey Experiment is available here.